Educator Misconduct: The High Costs of Underestimating Risk
HOWARD K. KURMAN, ESQ. AND TIMOTHY C. LYNCH, ESQ.
“Nearly 10% of students in the US are victims of educator misconduct at some point during their school experience.” Educator Sexual Misconduct: A Synthesis of Existing Literature (Shakeshaft 2004) published by the U.S. Dept. of Education
Given the risks attendant to any valid claim of educator misconduct, it is incumbent upon anyone with ultimate responsibility for school administration to be fully conversant with the issues surrounding the state of educator misconduct today, and what proactive measures can be taken to dramatically reduce the exposure, legal and otherwise, that a school and its administrators may face should such a claim ever be brought against a particular school.
An Ounce of Prevention
There are many specific and positive measures that can be implemented, all of which can minimize the risk and costs associated with possible claims of educator misconduct. Typically, most of these do not involve significant costs to the institution. And, as is generally true in most matters, instituting measures before a need arises almost always ensures better solutions, (i.e. more options, less cost) than those instituted after the fact. Such measures include, but are not limited to, developing specific written policies that describe, in plain language, how to:
- Define forbidden conduct between educator and student, and what boundaries educators need to respect in their relationships with students
- Conduct effective background checks (not simply limited to criminal background checks) which substantially reduce the risk of hiring a “mobile offender” who has moved from one institution to another
- Conduct appropriate in-service training programs to assure familiarity with and adherence to published and well-communicated educator misconduct policies and procedures
- Establish and maintain supervisory protocols and effective reporting procedure for educator misconduct claims that will work in tandem with investigations conducted by outside regulatory authorities
- Properly communicate crisis situations to students and parents alike in order to preserve the integrity of the school in situations that otherwise might negatively impact the reputation of the school
- Deal with the press and other media should any claim of educator misconduct surface
- Properly conduct an investigation of such claims in order to assure maximum confidentiality under the circumstances and to prevent improper retaliation against any complaining student or educator who provides relevant information during the course of such investigation, and
- Work with insurance brokers to provide maximum coverage to protect the institution and its administrators from potentially financially devastating claims.
Educator misconduct need not and should not remain a taboo subject in any educational institution; rather, if treated in a transparent and proactive manner, the topic can be intelligently discussed within a school and handled in a responsible and legally proactive way.
Howard Kurman is a partner at the law firm of Offit Kurman and chairs its Labor & Employment Law Group. Timothy Lynch is also a partner at Offit Kurman and chairs the firm’s Litigation Group.